If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its Affiliates to this Agreement. If you do not have such authority, or if you do not agree with these Terms and Conditions, you must not accept this Agreement and may not use the Stardust Services.
Licensee and Stardust shall be collectively referred to as the “Parties” and individually referred to as a “Party.”
The Parties agree as follows:
Stardust has developed a proprietary software-as-a-service platform and related e-commerce tools designed to create, delete, and manage non-fungible tokens (“NFTs”). Those tools include Stardust’s application programming interface language (the “Stardust API”) that permits end users to interface with applications and other online products or services hosted by Stardust for the purpose of purchasing NFTs (the “Stardust Applications”). Stardust acts as an agent on behalf of providers of NFTs. When end users purchase products via the Stardust API, they are purchasing such NFTs from the third-party provider for which Stardust is acting as an agent.
- USE OF THE STARDUST SERVICES
- Access and License. During the Term (as defined below), Stardust will make available to Licensee Stardust’s software-as-a-service customer portal (the “Stardust Platform”). Subject to the terms and conditions set forth in this Agreement, Stardust hereby grants Licensee a non-exclusive, non-sublicensable, limited license, solely during the Term, to (i) use the Stardust API to establish an integration between the Stardust Applications and applications under Licensee’s administrative control (“Licensee Applications”) and (ii) authorize end users of Licensee Applications to access the Stardust API from the Licensee Applications solely for the purposes of interfacing with the Stardust Applications (collectively, the “License”). The License granted to Licensee together with Licensee’s access to the Stardust Platform shall constitute the “Stardust Services.”
- Branding and Attribution. All use of the Stardust API must comply with the Stardust API Branding Guidelines located at https://cms.stardust.gg/brand-guidelines/ (the “Stardust API Branding Guidelines”). Stardust reserves the right to revise and supplement the Stardust API Branding Guidelines at any time. The Stardust API Branding Guidelines include, but are not limited to the following requirements:
- Licensee may not use the Stardust Marks (defined below) without specific written permission from Stardust.
- Any use of the Stardust Marks in the Licensee Application shall be less prominent than the logo or marks that primarily describe the Licensee Application and Licensee’s use of any of those logos shall not imply any endorsement by Stardust.
- Electronic Key; Updates. Stardust will issue Licensee a unique electronic key to access the Stardust API (the “API Key”). Licensee will treat the API Key as Confidential Information (defined below), and will not assign, transfer, or disclose such API Key to a third party. Licensee will be required to use the API Key to access the Stardust API. Stardust may modify and update the Stardust API from time to time (“API Updates”). Licensee is required to alter all Licensee Applications to implement and use the most current version of the Stardust API at Licensee’s sole cost within a commercially reasonable time period, but no later than sixty (60) days following notice of any API Updates. Stardust will have the right to review and approve Licensee’s use of the Stardust API, including any updates or modified versions, and Licensee will provide Stardust with access to review, test, and approve Licensee’s use of the Stardust API upon request by Stardust at any time during the Term.
- Limitations. Licensee will not provide access to the Stardust Platform to any person who is not an employee or current contractor of Licensee (“Authorized Users”), and Licensee will not make the Stardust API available to any third party who is not an Authorized User or an end user of a Licensee Application. Licensee will be responsible and liable for all Authorized Users’ compliance with the terms and conditions of this Agreement. Except as expressly permitted hereunder, neither Licensee nor any Authorized User will, or will permit or authorize any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Stardust Services; (b) modify, translate or create derivative works based on the Stardust Services; (c) copy, rent, lease, distribute, pledge, assign or otherwise transfer or allow any lien, security interest or other encumbrance on the Stardust Services; (d) use the Stardust Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as otherwise expressly authorized under this Agreement; (e) hack, manipulate, interfere with or disrupt the integrity or performance of or otherwise attempt to gain unauthorized access to the Stardust Services or its related systems, hardware or networks or any content or technology incorporated in any of the foregoing; (f) remove or obscure any proprietary notices or labels of Stardust or its suppliers on the Stardust Services; (g) attempt to use the Stardust API in a manner that exceeds rate limits, if applicable, or constitutes excessive or abusive usage; or (h) access the Stardust API (i) in any manner that compromises, breaks or circumvents any of Stardust’s technical processes or security measures associated with the Stardust Platform, (ii) poses a security vulnerability to users of the Stardust Platform, or (iii) tests the vulnerability of Stardust’s systems or networks. Licensee will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Stardust Services and notify Stardust promptly of any such unauthorized access or use, and (ii) use the Stardust Services only in accordance with the documentation provided by Stardust and all applicable laws, rules, and regulations.
- DATA AND INTELLECTUAL PROPERTY RIGHTS
- Licensee Data. Stardust will make available to Licensee via the Stardust Platform certain end user data and related purchasing information and analytics that is collected or generated in connection with end users’ orders placed through the Stardust Services as accessed from a Licensee Application (“Licensee Data”). As between the Parties, Licensee owns all Licensee Data. Licensee hereby grants to Stardust a nonexclusive, royalty-free, fully paid up, non-sublicensable (except to contractors, consultants, and service providers providing services on behalf of Stardust), nontransferable (subject to Section 9) right and license to (a) copy, modify, distribute, display, and otherwise use Licensee Data to perform its obligations under this Agreement, including disclosing Licensee Data to third-party service providers in connection with processing and fulfilling purchases of NFTs, (b) copy, modify, and use Licensee Data in connection with developing and improving Stardust’s products and services, and (c) create aggregated and/or anonymized data (the “Aggregated Data”). For the avoidance of doubt, Aggregated Data is not Licensee Data.
- Stardust Marks. Stardust hereby grants to Licensee a revocable, nonexclusive, non-sublicensable (except to contractors, consultants, and service providers providing services on behalf of Licensee), nontransferable right and license to use Stardust’s trademarks, service marks, and logos (“Stardust Marks”) for the sole purpose of identifying the Stardust Services to end users of a Licensee Application. Licensee covenants, represents and warrants that its use of the Stardust Marks will comply with all applicable laws and regulations and will in no manner reflect adversely upon the goodwill and reputation associated with Stardust and that such use and goodwill shall inure to the benefit of Stardust. Licensee acknowledges and agrees that, as between the Parties, Stardust retains all rights, title, and interest in and to the Stardust Marks. Stardust grants no and reserves any and all, rights other than the rights expressly granted to Licensee under this Agreement with respect to the Stardust Marks.
- Licensee Marks. Licensee hereby grants to Stardust a revocable, nonexclusive, non-sublicensable (except to contractors, consultants, and service providers providing services on behalf of Stardust), nontransferable right and license to use Licensee’s trademarks, service marks, and logos (“Licensee Marks”) for publicity, promotion, or otherwise. Stardust covenants, represents, and warrants that its use of the Licensee Marks will comply with all applicable laws and regulations and will in no manner reflect adversely upon the goodwill and reputation associated with Licensee and that such use and goodwill shall inure to the benefit of Licensee. Stardust acknowledges and agrees that, as between the Parties, Licensee retains all rights, title, and interest in and to the Licensee Marks. Licensee grants no and reserves any and all rights other than the rights expressly granted to Stardust under this Agreement with respect to the Licensee Marks.
- Stardust Services. Licensee acknowledges and agrees that, as between the Parties, Stardust retains all rights, title, and interest in and to the Stardust Services, all copies or parts thereof (by whomever produced), all improvements, updates, modifications, or enhancements thereto, and all intellectual property rights therein. Stardust grants no and reserves any and all, rights other than the rights expressly granted to Licensee under this Agreement with respect to the Stardust Services.
- Feedback. Licensee may from time to time provide suggestions, comments for enhancements or functionality, or other feedback (“Feedback”) to Stardust with respect to the Stardust Services. Stardust will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features, or functionality. Licensee hereby grants to Stardust a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide, and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
- FEES; PAYMENT TERMS
- Fees; Payment Terms. Licensee agrees to pay to Stardust a fee for each individual message initiated by an end user within a Licensee Application that is received by a Stardust Application via the Stardust API (each, a “Chargeable Transaction”). In addition, Licensee will pay to Stardust all other fees set forth in the Order in accordance with the payment terms set forth herein. Within thirty (30) days of the end of each month occurring during the Term, Stardust will deliver an invoice to Licensee that includes each Chargeable Transaction having occurred in the immediately previous month (each, an “Invoice”). Licensee shall pay each Invoice in full within thirty (30) days of the date of the applicable Invoice. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Licensee will pay all reasonable expenses of collection. In addition, if any past due payment has not been received by Stardust within ten (10) days from the time such payment is due, Stardust may suspend Licensee’s access to the Stardust Services until such payment is made.
- Secondary Sale Fees. The fees Stardust will collect for each secondary sale of digital assets via the Stardust API (“Secondary Sale”) are as follows:
(a) One-half of one percent (.5%) of the total sale price of any Secondary Sale as a Stardust API fee.; and
(b) One-half of one percent (.5%) of the total sale price of a Secondary Sale as a marketplace fee (“Marketplace Fee”) for all digital assets that are in the Stardust marketplace at the time of sale.
The Marketplace Fee is waived in the event that the Stardust marketplace is not utilized in a Secondary Sale transaction. Stardust reserves the right to modify the Marketplace Fee at any time upon sixty (60) days’ prior written notice to the Licensee.
- Net of Taxes. All amounts payable by Licensee to Stardust hereunder are exclusive of any sales, use, and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, sales, use, value added, and property taxes (collectively "Taxes"). Licensee will be solely responsible for payment of any Taxes, except for those taxes based on the income of Stardust. Licensee will not withhold any Taxes from any amounts due to Stardust. Without limiting the foregoing, Taxes related to an individual Stardust purchase shall be the responsibility of the end user and any applicable Taxes shall be determined by the physical location of the end user and/or retailer. Stardust will retain the amounts required to cover the Taxes for each Stardust purchase and remit those amounts to the appropriate taxing authorities.
- TERM, TERMINATION
- Term. The initial term of this Agreement will commence on the Effective Date and continue for the initial term set forth in the Order, unless earlier terminated as set forth herein (the “Initial Term”). Thereafter, this Agreement will automatically renew for additional periods of twelve (12) months (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other Party with written notice of non-renewal at least sixty (60) days’ prior to the end of the then-current term.
- Termination; Effect of Termination. In addition to any other remedies it may have, either Party may terminate this Agreement if the other Party breaches any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) days (or ten (10) days in the case of non-payment) of receiving written notice thereof. Prior to the effective date of the termination or expiration, Licensee may utilize the features and functionalities located on the Stardust dashboard to export the Licensee Data from the Stardust Platform. Thereafter, Stardust may, but is not obligated to, in its sole discretion and without delivery of any notice to Licensee, delete any Licensee Data stored or otherwise archived on the Stardust Platform or on Stardust’s network. Upon any expiration or termination of the Agreement, all rights, including the License, granted hereunder and all obligations of Stardust to provide the Stardust Services will immediately terminate and (a) Licensee will cease all use of the Stardust Services; and (b) each Party will return or destroy all copies or other embodiments of the other Party’s Confidential Information.
- Survival. Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.4, 2.1, 2.3, 2.4, 3.1, 4.2, 5, 6.2, 7, 8, and 9 will survive.
- As used herein, “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by either Party (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the other Party (the “Receiving Party”), or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure; provided, however, that a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified. Stardust’s Confidential Information includes, without limitation, the Stardust Services and the terms of this Agreement. Information will not be deemed Confidential Information if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party. Each Party agrees that it will use the Confidential Information of the other Party solely to perform its obligations or exercise its rights under this Agreement. Neither Party will disclose, or permit to be disclosed, the other Party’s Confidential Information directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. Each Party will use reasonable measures to protect the confidentiality and value of the other Party’s Confidential Information. Notwithstanding any provision of this Agreement, either Party may disclose the other Party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives) who have a need to know and are legally bound to keep such Confidential Information confidential by written confidentiality obligations at least as protective as those in this Agreement or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; and (ii) as required by law (in which case each Party will provide the other with prior written notification thereof, will provide such Party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Each Party agrees to exercise due care in protecting the Confidential Information from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement.
- REPRESENTATIONS, WARRANTIES, AND DISCLAIMER
- Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a Party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.
- Disclaimer. LICENSEE ACKNOWLEDGES THAT STARDUST FACILITATES END USER PURCHASES OF NFTS. STARDUST MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, VALIDITY, RELIABILITY, TIMELINESS, OR ACCURACY OF THE NFTS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE STARDUST SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND STARDUST DISCLAIMS ANY AND ALL WARRANTIES. STARDUST DOES NOT WARRANT THAT THE STARDUST SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE STARDUST SERVICES WILL BE UNINTERRUPTED. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ALL OTHER EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. EACH PARTY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.
- LIMITATIONS OF LIABILITY
- Disclaimer of Consequential Damages. THE PARTIES HERETO AGREE THAT, NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) LICENSEE’S BREACH OF SECTION 1, (B) EITHER PARTY’S BREACH OF SECTION 5, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
- General Cap on Liability. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR LIABILITY ARISING FROM (A) LICENSEE’S BREACH OF SECTIONS 1, (B) EITHER PARTY’S BREACH OF SECTION 5, OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY LICENSEE TO STARDUST UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. IN NO EVENT WILL STARDUST’S TOTAL LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION EXCEED TWO TIMES (2X) ALL FEES PAID BY LICENSEE UNDER THIS AGREEMENT.
- Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
- Indemnification for Infringement. Stardust will defend Licensee and the officers, directors, agents, and employees of Licensee (“Licensee Indemnified Parties”) against any third-party claim, allegation, or legal action (a “Claim”) arising from an allegation that Licensee’s authorized use of the Stardust Services infringes upon any intellectual property right of a third party. Further, Stardust will indemnify the Licensee Indemnified Parties against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees. Notwithstanding the foregoing, Stardust’s indemnification obligation will not apply to the extent Claims arise from (a) modification of the Stardust Services by any party other than Stardust without Stardust’s express written consent; (b) the combination, operation, or use of the Stardust Services with other product(s), data or services where the Stardust Services would not by itself be infringing; (c) unauthorized or improper use of the Stardust Services; or (d) Licensee’s use of a custom user identity authentication system in accordance with Section 1.5 of this Agreement. If the use of the Stardust Services by Licensee has become, or in Stardust’s opinion is likely to become, the subject of any claim of infringement, Stardust may at its sole option and expense (i) procure for Licensee the right to continue using the Stardust Services as set forth hereunder, (ii) replace or modify the Stardust Services to make it non-infringing so long as the Stardust Services have at least equivalent functionality, (iii) substitute an equivalent for the Stardust Services or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement. This Section 8.1 states Stardust’s entire obligation and Licensee’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
- Indemnification by Licensee. Licensee will defend Stardust and the officers, directors, agents, and employees of Stardust (“Stardust Indemnified Parties”) against all Claims arising from (a) any use or disclosure by Licensee of the Stardust Services in violation of this Agreement, (b) the Licensee Applications (excluding the Stardust API incorporated therein), (c) any product defect or product liability claim arising out of or related to the Licensee’s product(s), and (d) Licensee’s violation of applicable law. Further, Licensee will indemnify the Stardust Indemnified Parties against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.
- Indemnification Procedure. If any Licensee Indemnified Parties or Stardust Indemnified Parties (each, an “Indemnified Party”) become aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration, or other proceeding against the Indemnified Party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action and turn over the defense to the Indemnifying Party. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its legal counsel in the defense and the Indemnified Party will have the right to participate, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, which will not be unreasonably withheld or delayed.
- Licensee agrees that Stardust may list and/or identify Licensee’s name to identify the business relationship between the Parties on Stardust’s website and in other marketing and advertising collateral.
- Licensee may not remove or export from the United States or allow the export or re-export of the Stardust Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
- If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
- Neither Party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other Party’s prior written consent; provided however, that either Party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either Party otherwise than in accordance with this Section will be null and void.
- Both Parties agree that Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein.
- No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever.
- In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover reasonable costs and attorneys’ fees.
- All notices under this Agreement will be in writing and sent to the addresses set forth in the Order, with a copy to firstname.lastname@example.org if sent to Stardust. All notices will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
- Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, pandemics, epidemics, outbreaks of disease, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party's financial condition or any internal labor problems including strikes, lockouts, work stoppages or slowdowns, or the threat thereof) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. Upon the occurrence of any Force Majeure Event, the affected Party will give the other Party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
- This Agreement will be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in San Francisco, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
- Arbitration and Waiver of Class Actions. Any legal claim arising out of or relating to this Agreement or Stardust’s Services shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, including, if necessary, the Optional Rules for Emergency Measures of Protection. The arbitration shall be conducted in San Francisco, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS SECTION 9.11 MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE LICENSEE CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER LICENSEE OR USER.
- Licensee acknowledges that any unauthorized use of the Stardust Platform may cause irreparable harm and injury to Stardust for which there is no adequate remedy at law.
Last updated March 1, 2023